Married or not married, that is the question.

In Texas, when parties are not legally married, their marriage may still be valid if certain requirements are met.  A common law marriage (also referred to as an informal marriage) exists when a man and woman (1) agree to be married, (2) live together in Texas as husband and wife, and (3) represent they are married to others.  Each case is evaluated on a fact-specific basis to determine whether or not a common law marriage exists.

Goranson Bain- Young couple taking selfieTo meet the first requirement, the agreement to be married, the evidence must show that the parties intended to have a present and permanent marital relationship.   Some instances where Texas courts have determined the evidence was sufficient to show the parties had an agreement to be married include the following:  a man calling woman “Mrs.”, his parents calling her their daughter-in-law, and the woman being identified as “wife” on loan papers; woman’s testimony that there was an agreement to be husband and wife even though husband denied the agreement; woman’s testimony that she and man considered themselves already married even though they planned to ceremonially marry sometime in the future.  Some examples of when Texas courts have determined the evidence was NOT sufficient to establish an agreement to be married include:  behavior that is just as consistent with courtship as with a close marital relationship (i.e. living together, holding hands, showing affection, doing “everything together”, taking care of each other during sickness); and marriage proposal and giving of engagement ring.

To establish the second requirement, the parties must live together as husband and wife in Texas (also referred to as “cohabitation”).   This requirement is, again, evaluated on a case by case basis.  Cohabitation occurs when parties live together as husband and wife, maintaining a household together, and doing things ordinarily done by a husband and wife.  If the parties do not cohabitate as husband and wife in Texas, then no informal marriage exists.   However, to establish cohabitation, the parties do not necessarily have to live with each other continuously.


The third requirement, a man and woman holding out others in Texas that they are married, is met by just that, both the man and woman telling other people in Texas that they are married.  If the marriage is a secret, then no informal marriage exists.  Some examples where Texas courts have determined this requirement was met include:  man and woman signed a credit application as husband and wife; man and woman introduced each other to friends as husband and wife and signed a guest book as “Mr. and Mrs.”; evidence that couple addressed each other as husband and wife and people in community believed them to be husband and wife.  Texas courts have determined the following evidence was NOT sufficient to show holding out:  evidence that woman introduced man as husband to only two friends and told only two or three others that she was married; evidence that woman referred to man as her “boyfriend” and that man indicated he had no spouse in lease agreement.

In the state of Texas, there are several people who cannot enter into an informal marriage, even if they wanted to, including:  1) any person under the age of 18; 2) same-sex couples, 3) related persons; and 4) anyone who is currently married.

Katie Flowers Samler

“Divorce can happen to anyone. I guide clients through the process, protecting them, their interests and their goals.”– Kathryn Samler